University of Tasmania, Australia

To change the Constitution requires a majority of voters in a majority (at least 4 out of 6) of States to agree with the proposed change. This is the referendum process set out in Section 128. Any proposal for a referendum must first be passed by both Houses of the federal Parliament, before proceeding to the people of Australia for their vote.

Of the 42 (44?) referenda proposed since federation, only 8 have passed that exacting threshold. Of those 8, the amendment proposed to Section 51 (xxvi) of the Constitution in 1967 is the best known. The Section originally granted power to the Commonwealth to make law with respect to ‘the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws.’

The proposal was to delete the words ‘other than the aboriginal race’. This referendum proposal, supported by both the major political parties and driven by a strong cohort of Aboriginal activists was a unique and over-whelming success. Yet, post the referendum, the changes to the text of the constitutional provision, brought in its wake unexpected problems, notably the question whether the revised Section (xxvi) permits of discriminatory laws.

Many hoped, however, that our next referendum would revisit formal recognition of Aboriginal peoples in the Constitution, but as it turns out it will deal solely with recognition of local government. Why?